R. Bruce Townsend Professor of Law,
Indiana University Robert H. McKinney School of Law
Q: As an expert on issues of sexual harassment, how do you define it and what can we do to stop it?
A: Well, first of all, sexual harassment looks like it’s about sex, but it’s really about power and the abuse of power. The methodology for the abuse of power is sexual. I’ve been working on this topic since 1992, which was when I had my first sexual harassment case, and I’m interested in learning about how to identify the abuses of power that hurt women and minorities, and try to educate people so that it stops happening. I’ve discovered that there are at least three types of harassers and I call them: the clueless, the couldn’t care less, and the corrupt predators. The corrupt predators are sick individuals. They will not be reformed, and need to be excised from an organization. The people who could not care less know what they’re doing is wrong, but they don’t care. They’re getting some sort of gratification, usually an ego boost. While an employer probably won’t change their minds, their behavior can change with appropriate sanctions for those individuals, and policies and procedures that hold people accountable. The situations that are most easily ameliorated are with the clueless. These people simply don’t realize that what they’re doing is offensive to somebody else. Once they hear, “Hey, you hurt that individual,” they actually are surprised, feel remorse, and want to make amends. What I advocate is figuring out ways to make perpetrators understand what it’s like to be dominated or oppressed by someone who is exploiting power—this is what’s happening, whether you’re male or female. We can basically stop most sexual harassment with either education or properly applied sanctions and investigations.
Q: What do you think are some of the biggest challenges in our current climate?
A: Change is difficult for people; it makes them feel uncomfortable. What I’m seeing with the #MeToo and Time’s Up movements is that people in power are getting nervous. Some people view the world as a pie: if my slice gets bigger, yours gets smaller. Life is not a zero-sum game; we can all be powerful. The push back from #MeToo manifests in a huge concern about false claims. The social science evidence is quite robust, however, that about 2 to 8 percent of claims turn out to be false, which means that 92 to 98 percent of claims are credible and have supporting evidence. There are also concerns about lack of due process. My experience has been that most of the time a false claim is revealed, and most of the time people do get due process. I really agree with reporter Paul Rodgers from The Mercury News who once told me that sunlight is the best disinfectant. When you have knowledge, when you have transparency, when you have accountability, you have an opportunity for a freer society and the opportunity to end discrimination and oppression.
Q: What interests you about the intersection of neuroscience and law?
A: I wrote a book that was published in 2016 called Sexual Exploitation of Teenagers: Adolescent Development, Discrimination, and Consent Law. It focused on the prevalence of sexual harassment against teens in school and at work, but also on sports fields, in churches, and in other youth groups. Developmentally, teenagers can usually come to the same decisions that adults would make in a cool, calm situation. With advisors, with friends, with help, they usually arrive at what adults would consider to be the right choice, a rational choice. However, they often make decisions differently than adults do because their brains are undergoing massive changes during adolescence. Anybody who deals with teenagers knows this. Sometimes they’re extremely mature and sometimes they forget their lunch and don’t remember to bring their coat. I have this recurring theme in my book: What were you thinking? And the answer is: they’re not all the time. If a teenager who’s going through this maturing process encounters what we call a hot situation—a situation involving peers and no adult voices of reason—their decision making can be very different. And predators know this. They groom teenagers, get them to consent to sex, and then exploit them.
The age of consent law in California is 18. In 2015, a sexual harassment case involving a teacher and a 13-year-old student highlighted that because of some of idiosyncratic outcomes in civil law, not criminal law, the school might not be liable for the teacher’s conduct. The Los Angeles Unified School District argued that the girl welcomed the behavior. Therefore, it suggested that there was no personal injury or discrimination. People were pretty outraged by that contention. Somebody called me about it and I said, “Yeah, that’s currently the law in California.” I worked with legislative aides to change the law . The month my book came out, California law changed; people can no longer use a child’s consent against him or her in most civil cases. The neuroscience evidence of how the brain develops prompted changes in law regarding teenage consent. My goal is to have society, and us as individuals, reconsider what consent means in the context of neuroscience and psychosocial evidence, then use that science to make law more rational.
Q: Clearly much has happened since you graduated from College Prep. What are some of the seminal experiences that contributed to your career focus?
A: I went to Stanford pre-med, but ended up a history major. Later, I gave law school a try, but left and taught history and later algebra at Castilleja. I went back to Stanford to get my master’s in history, retook the LSAT, and converted my studies to a joint degree in law and history. After graduating, I spent a month in Japan, a month in China, a month in India—this really taught me a lot, too. Prior, I had already accepted a judicial clerkship in Dallas so I was there for a year. While I was there, I got pregnant, married, and divorced. I had a two-year-old baby and could not get a job in Dallas as a lawyer. My dad is a lawyer and said that if I moved back to California where I had taken the bar, he would feed me a few cases from his practice and I could start my own law firm. The first case I landed myself was in 1992, a sexual harassment case. This was just after the Clarence Thomas senate hearings; Anita Hill’s experiences put sexual harassment on the public’s radar. My Santa Cruz case involved the president and CEO of a company that was about to go public, and it didn’t report the lawsuit on its SEC filings. I learned a lot on that case, which led to my reputation as an expert on sexual harassment law. After practicing for almost six years, I went back to Stanford to get a doctoral degree in law, so that I could teach and also spend more time parenting. I’ve been in Indiana at Indiana University (IU) since 2001 where I teach, or have taught, family and juvenile law, ethics, and sexual harassment law.
In the last few years I had opportunities to work outside IU. In 2015, I did a Fulbright Specialist gig in India and was there for a month teaching women’s and LGBTQ rights. I’ve done research and writing projects at the University of Cambridge, Harvard Law School, and a sabbatical back in California. I’m speaking to you from Buenos Aires where I’m working on The Myth of Consent: Law & The Science of Human Behavior, which analyzes the neuroscientific and psychosocial aspects of decision making by vulnerable adults and offers legal solutions for civil law reform.
Q: What about your College Prep experience relates to how you are today?
A: I use what I learned at CPS, I would say, almost every day. I follow Aina Rech’s philosophy— that you can’t just talk about things, you have to live what you believe in. History teachers, Hans Crome and Mr. Dewey, who told me about famous philosophers and thinkers, taught me that if you understand history you will often find answers for today’s problems. I developed a love of biology in Nancy Newman’s classes that I use now as I approach neuroscience. Mr. Baldwin, during a moment of poor judgment on my part, taught me about the impact of my actions on the greater community of students and teachers. We are all responsible for taking care of each other, for upholding the simple rules that make our society work. Then, when we leave CPS, we just do the same things all over again on a bigger scale.